In Ferrell v. City of Wilmington et al, No. 21-1593-RGA, 2023 WL 1437765 (D.Del. Feb. 1, 2023), the court, inter alia, recommended that the court deny defendants’ motion to dismiss plaintiff’s claim of a religion-based hostile work environment in violation of Title VII of the Civil Rights Act of 1964.
Specifically, the court rejected defendants’ argument that this claim was untimely and/or unexhausted (i.e., not properly presented to the EEOC before filing in court).
From the decision:
Here, Plaintiff has alleged an incident within the limitations period: the July 6, 2021 incident in which another firefighter put a can of pork in Plaintiff’s coat, knowing that Plaintiff’s religion forbids him from eating pork. Plaintiff further alleges that, notwithstanding his complaints to the City, his coworkers made derogatory comments relating to his religion “on an almost everyday basis.” He also alleges a number of other incidents that plausibly suggest a pattern of derogatory comments and actions by Plaintiff’s colleagues and superiors regarding Plaintiff’s religion. And, he alleges that he reported the misconduct to multiple supervisors and human resources personnel on multiple occasions, but no action was taken. In sum, Plaintiff has plausibly alleged a pattern with at least one act in the limitations period, so I can’t say at this stage that his claim is untimely.
Defendants point out—and Plaintiff doesn’t dispute—that a break of longer than 300 days between incidents will preclude Plaintiff from relying on the earlier incidents to demonstrate a hostile work environment. (Tr. 25.) But the effect of any temporal interruptions in a pattern of hostility will have to be assessed on a more complete record, not on a motion to dismiss. At this point, the Court must accept as true Plaintiff’s allegation that he was subject to comments about his religion “on an almost everyday basis.”
I also reject Defendants’ argument that Plaintiff failed to exhaust a hostile work environment claim based on religion. “The relevant test in determining whether a plaintiff has exhausted his administrative remedies is ‘whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.’ ” Navarro v. Wal-Mart Assocs., Inc., No. 19-201-LPS, 2020 WL 777202, at *3 (D. Del. Feb. 18, 2020) (citation omitted). Plaintiff’s First Charge checked the “religion” box and alleged that the conduct being challenged was “harassment.” Cf. Anjelino v. N.Y. Times Co., 200 F.3d 73, 95 (3d Cir. 1999) (concluding that the phrase “abusive environment” in an EEOC charge was sufficient to exhaust the plaintiff’s hostile work environment claim). It also lists the 2017 Thanksgiving incident and alleges that a superior told Plaintiff, “I did not think you sham a lam a Muslim ding dongs celebrated Thanksgiving.” Plaintiff’s Second Charge contains the same allegations and also describes the 2021 incident in which Plaintiff found pork in his coat pocket. It likewise alleges “harassment” based on “religion,” and the “Continuing Action” box is checked. The acts and hostile work environment alleged in the Amended Complaint are fairly within the scope of Plaintiff’s EEOC charges and the investigation that could be expected to arise from those charges.
[Cleaned up.]
Based on this, the Magistrate Judge recommended that the District Judge deny defendants’ motion to dismiss this count of plaintiff’s complaint.